emolument or as a source of revenue, and has constructed and kept in repair these paths as a part of the common for the comfort and recreation of the public, and not as a part of its system of highways or streets. It is not liable under the statutes for any defect or want of repair in them. Oliver v. Worcester, 102 Mass. 489; Clark v. Waltham, 129 Mass.

The plaintiff contends that if there is no statute liability, the city is liable "as owner of the land, and the maker and repairer of the way upon which the plaintiff was invited to go." If a private person owned a similar park, to which he had given the public access, we are at a loss to see how he could be held liable for an accident like that of the plaintiff. Such person might, if he saw fit, set apart and fit for use one of the paths for the recreation of youth in coasting, and if any one should, as was the case with the plaintiff, choose to enter upon the path, seeing that it was set apart for this purpose, he would do so at his own risk and could not hold the owner responsible if he was injured by a passing sled. But even if a private owner would be liable, it does not follow that the city would be. It maintains the common solely for the benefit of the public. If there is any legal duty to keep the paths in a safe condition, it is solely a public duty for a breach of which no action lies by an individual who is injured, unless the statutes give such action. Clark v. Waltham, supra, and cases cited.

The city may legally set apart a portion of the common for the recreation of the young. The fact in this case that it did so, and that it used means to fit it for the purpose for which it was set apart, did not render it liable to the plaintiff for the injury which he sustained. Judgment for defendant.

ABSTRACTS OF RECENT DECISIONS.

ENGLISH, IRISH AND CANADIAN CASES.

LIBEL-INNUENDO -WORDS INCAPABLE OF DEFAMATORY SENSE.-1. Where words taken in their primary sense are not libelous, if taken in a sense distinct from their primary sense, there must be evidence of facts which would reasonably make them defamatory in their secondary sense, known both to the person who indicted the libel, and to those to whom it was published. 2. Action for libel for printing and publishing of the plaintiffs the following circular: "H & S hereby give notice that they will not receive in payment checks drawn on any of the branches of the C. C. Bank," with an innuendo that the plaintiffs were not to be relied upon to meet the checks drawn on them, and that their position was such that they were not to be trusted to cash the checks of their customers." Held (by BRETT and COTTON, L.JJ., THESIGER, L.J., diss.), that the words of the circular taken in their primary sense were not libelous; that there was nothing known to those to whom it was published upon which they

66

could reasonably place a second meaning, and, therefore, there was no evidence that the document was defamatory in a secondary sense. Decision of the Common Pleas Division (10 Cent. L. J. 454) reversed, and judgment entered for the defendant.-Capital, etc. Bank v. Henty. English Court of Appeal, 28 W. R. 851.

RAILROAD COMPANY

- EXPLOSION OF FOG SIGNAL NEGLIGENCE NONSUIT. Plaintiff, while standing on the platform at one of the defendant's stations, had his eye injured by the explosion of a fog signal which had been placed on the track. The only evidence given was that certain servants of defendants had those fog-signals in their possession for lawful purposes, but that no one, to the knowledge of several employees of the company, who were called as witnesses, placed this one on the track, and it appeared not impossible that it might have been obtained from them by some third party, or might have been put there by a servant of the defendants for a frolic, and not for any purpose of the company or their business. Held, that a nonsuit had been properly directed.Jones v. Grand Trunk R. Co. Ontario (Canada) Court of Queen's Bench, 16 Can. L. J. 210.

LIFE ASSURANCE-INTEREST ON POLICY MONEYS -RIGHT TO RECEIVE PAYMENT.-A life insurance company is not bound to pay the moneys due on a policy until it can get a good discharge, and therefore is not liable to pay interest on the policy moneys from the date of proof of the death of the insured. Whether the court may order payment of the policy moneys in the absence of the legal personal representative of the insured, quære. Crossley v. City of Glasgow Life Ass. Co., 25 W. R. 264, commented on. Decision of Jessel, M. R., reversed.-Webster v. British Empire Ins. Co. English Court of Appeal, 28 W. R. 818.

SALE OF BUSINESS AND GOOD-WILL-NAME of FIRM RECOMMENCEMENT OF BUSINESS BY VENDORS-SOLICITING FORMER CUSTOMERS. Upon the sale of a business and good-will, it was agreed that the purchaser should be at liberty to use the name or style of the vendors for a period of two years. After the expiration of the two years the vendors recommenced business under a similar name or style to that under which they had carried on the business they had sold, and also solicited their former customers. Held, that they must be restrained from soliciting or in any way endeavoring to obtain the custom of their former customers. Semble, that they might also be restrained from dealing with their former customers. Cruttwell v. Lye, 17 Ves. 335, observed upon.— Ginesi v. Cooper. English High Court Chy. Div. 42 L. T. (N. S.) 751.

-

STOPPAGE IN TRANSITU - SUB-PURCHASE-DuRATION OF TRANSIT-CONSTRUCTIVE Delivery of CARGO LIABILITY OF PART FOR THE WHOLE.— Re-sale of goods in transitu by the purchaser, receipt by the sub-purchaser of delivery orders for the whole, and actual receipt of part of the cargo, do not put an end to the transitus, so as to prevent the original vendor's right of stoppage in transitu attaching to the unpaid purchase-money due from the sub-purchaser, although the right to stop the goods themselves may be gone. Ex parte Golding, L. R. 13 Ch. D. 628, followed. PER BRAMWELL, L. J.: There is no such thing as "constructive delivery of part of the cargo for the whole." Slubey v. Heyward, 2 H. Bl. 504, and Hammond v. Anderson, 1 B. & P. N. R. 69, commented on.-Ex parte Falk. English Court of Appeal, 28 W. R. 785.

NOTES OF RECENT DECISIONS.

CRIMINAL LAW-PENDENCY OF ANOTHER INDICTMENT FOR SAME OFFENSE-DISQUALIFICATION OF PRESIDING JUDGE.-1. C and B having been jointly indicted in the county of P for murder, the venue of the case was upon the application of B and over the objections of C changed to the county of S; C, having afterwards been again indicted in the county of P for the same offense and there put on trial, pleaded in abatement the pendency of the indictment in the county of S. Held, that the plea was properly overruled. 2. The disqualification of the judge to try the case would not prevent him from receiving the report of the grand jury for the term, although there may be embraced in that report the return of an indictment in which he would not be qualified to sit on the trial. -Cock v. State. Court of Appeals of Texas. Opinion by WINKLER, J. Judgment affirmed. 2 W. J. 283.

NEGOTIABLE PAPER- NOTICE BY MAIL OF DISHONOR.-Where an indorsee or other person entitled to notice of the dishonor of a negotiable instrument resides within the same post office delivery with the one whose duty it is to give notice, then the notice must be served or left at the residence or place of business of the one entitled to it, and the notice can be sent by mail only in case the one to be notified resides nearest to it or is in the habit of receiving his mail matter at another post office than the one from which such notice is sent.-Forbes v. Omaha Nat. Bk. Supreme Court of Nebraska. Opinion by COBB, J. Judgment reversed. 22 Alb. L. J. 169.

Usury as a Defense MUST BE PROVED.-B and O. were lawyers occupying the same office. Defendant negotiated a loan on mortgage to him from B, O acting in the transaction as the attorney for B. Defendant paid O a bonus for the loan, no part of which was shown to have gone to B, and B denied that he received any part, and O and another witness testified that B knew nothing of the payment of the bonus which O stated that he retained it entirely for his own benefit. Held, not to establish the taking of nsury on the part of B. Usury must be established like any other defense by proof of a satisfactory character, and 3 party can not be made liable for the acts of an agent intrusted with money to invest, who exacted a bonus for himself as a condition of making the loan, without the knowledge or assent of the principal. Guardian Mut. Ins. Co. v. Kashaw, 66 N. Y. 544; Condit v. Baldwin, 21 Id. 219.-Van Wyck v. Walters. Court of Appeals of New York. Opinion by MILLER, J. Judgment affirmed.

TAXATION RAILROADS-VILLAGE CORPORATION -LEGISLATIVE POWERS.-1. A tax assessed for public purposes can not constitutionally be imposed upon a portion only of the real estate of a town, leaving the remainder exempt. 2. A legislative act, authorizing a village corporation to levy a local tax upon the real estate of its municipality for public purposes-thus imposing a local tax for general and public purposes upon the real estate of one part of a town, leaving the other part untaxed-transcends the power of the legislature, and is unconstitutional and void. 3. The constitutional provision, requiring that "all taxes upon real estate, assessed by authority of this State, shall be apportioned and assessed equally, according to the just value thereof," can not be evaded by first creating the territory to be taxed into a territorial corporation for a local purpose, and not separated from the rest of the town, nor relieved from any portion of the taxes to which it was liable in common with all the other real estate of the town. So long as such territory remains a component part of the town, and liable to taxation for all purposes for which the remainder of the town is taxed, it can not be separately

taxed for public purposes. 4. Taxation in aid of railroads is taxation for a public purpose, and on this ground alone its constitutionality is sustainable. Taxation for local purposes, such as the building of drains, sewers, and the like. should be assessed upon the property thereby benefited, and in proportion to the benefits thereby conferred. For the first, the assessment is to be on the basis of valuation; for the latter, on the basis of benefits conferred.-Dyar v. Farmington. Supreme Court of Maine. Opinion by WALTON, J. Judgment affirmed.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

July, 1880.

ENTIRE CONTRACT-EVIDENCE.-In an action of contract upon an account annexed, to recover the balance due for one thousand cases of rubber goods sold to the defendants, the defense was that the plaintiffs made an entire contract to furnish the defendants two thousand cases of rubber goods; that they refused to perform the contract by furnishing the second thousand cases, and that the defendants thereby sustained damages to an amount greater than the amount claimed, which they had the right to set-off by way of recoupment. The defendants contracted with the plaintiff's agent for the purchase of two thousand cases, and particularly specified the kind, sizes and quality of the goods. The plaintiffs contended that it was a contract for the sale of two thousand cases, if the agent had the goods in the stock then on hand in his store. One of the defendants testified that the "sizes he ordered were the ordinary run of sizes.'' His counsel then asked him whether "other sizes varying more or less from them would have been equally convenient to the witness in his business?'' The plaintiffs objected to the question, but the court permitted the question to be put, and the witness answered in the affirmative. The jury found for defendants. Held, that the question and answer were incompetent. The contract, whether absolute or conditional, being for specific kinds and sizes, the plaintiffs were not required or permitted to furnish, and the defendants were not required to accept, nor entitled to call for, other kinds and sizes; and as the evidence may have affected the jury to the prejudice of the plaintiffs, the exceptions must be sustained. Opinion by MORTON, J.-National Rubber Co. v. Sweet.

LEASE-CONTEMPORANEOUS AGREEMENT - REFERENCE-CONSTRUCTION.--In an action of contract, it appeared that the defendant owned a tract of land, with certain greenhouses and other buildings thereon, and executed a lease to the plaintiffs of a portion of said premises for the term of five years, at the same time executing an agreement reciting said lease, and that whereas the boilers, or heating apparatus in said greenhouses are not now in satisfactory order, and other small repairs are needed in and upon said houses," and stated that in consideration of said lease," the defendant agrees to forthwith, as soon as the weather will permit, put the said boilers and heating apparatus in good working order, so that said greenhouses shall be supplied and furnished with the usual facilities for heating and forcing. And also will furnish the lumber required to repair the benches in said houses," the plaintiff doing the labor of repairing them," and that the defendant will put said greenhouses generally in good working order. And in case of a dispute between the said parties as to whether the said heating apparatus is so changed and improved as to give the said greenhouses the usual

facilities for heating and forcing, that question shall be referred to a competent party as umpire." It also appeared that the end of one of the greenhouses abutted against the side of a barn, which was a part of the demised premises, though not of the greenhouse itself; that prior to the giving of said lease, boards and coverings which had been made and used to put over the roof of the greenhouse adjacent to the barn, to protect it from snow or ice that might slide from the roof of the barn upon it, had been removed; and that no rails, bridges or guards had been placed by the defendant upon the roof of the barn to protect the roof of said greenhouse from snow and ice, which the plaintiff claimed the defendant was bound to do. Held, 1. That said lease and agreement were parts of the same transaction, and that the former was a sufficient consideration for the latter. 2. That the agreement to refer would not prevent the plaintiff from maintaining his action. Evans v. Clapp, 123 Mass. 165; Pearl v. Harris, 121 Mass. 390; Rowe v. Williams, 97 Mass. 163. 3. That the work required to put the greenhouses in order was to be done in and upon the greenhouses themselves, and that the defendant was not bound to place said rails, bridges or guards on the roof of the barn. Opinion by ENDICOTT, J.Vass v. Wales.

DOWER-COLLATERAL WARRANTY ASSETS IN HANDS OF HEIR.-In a writ of dower, the following facts were agreed upon: That the demandant was legally married to Luke Julian in the year 1832; that said Luke was seized and possessed of the demanded premises in the year 1837; that thereafter said Luke conveyed the same to one Moses, the father of this demandant, but she did not sign the deed, nor did she at any time release her right of dower in said premises; that said Luke died in 1877, and that demand was legally made on defendant for the assignment of said dower; that said Moses, after the conveyance of said Luke to him conveyed said premises by warranty deed, and the same came to defendant by mesne conveyances, so that defendant has the right to, and does, rely upon the warranty in said Moses' deed; that said Moses died in August, 1862, in the State of New Hampshire, where his children also are, and he, for many years, had resided, leaving an estate which by will was given to trustees for the benefit of eight children living at his decease, the income to be paid to them during their lives; that said will was duly probated in the State of New Hampshire; that the estate has been settled in due course of law and paid over to said trustees, and the time limited for commencement of actions against the executor by the statutes of this Commonwealth and of New Hampshire has expired; that no provision was made in said will for the payment of any claim arising from or under said conveyance from said Moses; that the demandant's share of the income of said trust fund, added to what she received under a residuary clause in said will, would exceed the value of said dower interest. Held, that the money received by the demandant in the State of New Hampshire from the executor or administrator appointed there was no more assets under Gen. Stat. ch. 101, §§ 31, 32, than real estate lying in another State, and inherited from the grantor in a deed, was assets to make the heir liable on the covenants of the ancestor at common law; and that the demandant was entitled to her dower. Opinion by SOULE, J.-Julian v. Boston, etc. R. Co. LEASE IMPLIED WARRANTY-DUE CARE.-The rule that there is no implied warranty in the letting of a house that it is safe and fit for habitation, applies only to premises which by the terms of the lease have passed out of the control of the landlord into the exclusive possession of the tenant. When, therefore, the plaintiff's husband had leased a set of rooms in

the defendant's tenement house, and the plaintiff, while ascending a stair-case for the purpose of hanging out clothes for drying upon the top of an outbuilding, which had been pointed out by the defendant as the proper place for that purpose, and to which the stair-case was apparently intended to furnish a passage way, no other external means of access thereto being visible, was injured without her fault by a defect in said stair-case, it was held, that the defendant was liable. Leavitt v. Fletcher, 10 Allen, 119; Foster v. Peyser, 9 Cush. 242; Readman v. Conway, 126 Mass. 374; Milford v. Holbrook, 9 Allen, 17. The fact, if proved, that the plaintiff had previous knowledge that the stairs werein a dangerous condition, would not be conclusive evidence that she was not in the exercise of due care. Whittaker v. West Boylston, 97 Mass. 273; Reed v. Northfield, 13 Pick. 273. Opinion by COLT, J.Looney v. McLean.

SUPREME COURT OF PENNSYLVANIA.

April-July, 1880.

NEGLIGENCE-RAILROADS - LOCOMOTIVE WHISTLE CROSSINGS GATES PRECAUTIONS NECESSARY SUFFICIENCY OF EVIDENCE TO WARRANT SUBMISSION TO JURY.-1. In an action for negligence, where there is, from the evidence, a reasonable doubt as to the facts, or as to the inferences to be drawn from them, negligence is a question for the 'jury. 2. The law requires that notice of trains approaching a street-crossing shall be given by some suitable and adequate means adapted to the circumstances; the railroad company, as well as the public, is bound to use a degree of care and diligence commensurate with the risk of accident at particular crossings. 3. It is for the jury to say whether a railroad company has taken the precautions necessary under the circumstances to warn travelers of an approaching train at a crossing in the city. 4. It is for a jury to say whether the blowing of the whistle of a locomotive at a railroad crossing is negligence on the part of the company. 5. A having stopped, looked and listened before reaching a railroad track, and neither seeing nor hearing a train, drove on. The view on the south was unobstructed, on the north it was cut off by a large building; before reaching the track A's horse took fright, according to some witnesses, at the sudden blowing of the whistle of a train approaching from the north; according to others, who testified that no whistle had been blown, from other causes. A was killed. In an action by his legal representatives against the railroad company: Held, that it was properly left to the jury to say whether any whistle had been blown, and if so, whether it was done negligently. 6. Where a gate has been erected by a railroad company at a crossing in the city, and it has customarily been tended between certain hours of the day, but left open after seven o'clock in the evening, without any attendant, and A, after that hour, saw it open and drove on, but before reaching the track his horse took fright and he was killed: Held, that it was properly left to the jury to say whether, under the circumstances at this place, the company had been guilty of negligence in leaving the gate unguarded. Affirmed. Opinion by STERRETT, J. SHARSWOOD, C. J. and PAXSON, J., dissenting.Philadelphia, etc. R. Co. v. Killips. 8 W. N. 526.

NATIONAL BANKS - EMBEZZLEMENT-FORGERYFALSE ENTRIES-STATE AND FEDERAL JURISDICTION. A teller of a National Bank, incorporated under the laws of the United States, may be convicted in a

State Court upon an indictment charging him with fraudulently making false entries in the books of the bank with intent to injure and defraud the bank. Such an offense is forgery at common law. In Com. v. Ketner, 8 W. N. 133, 10 Cent. L. J. 345, the prisoner was indicted as cashier of a National Bank with embezzling the funds of the bank, and he was discharged upon habeas corpus for the reason that the offense was not indictable at common law, and our statutes defining and punishing the offense do not apply to National Banks. Here the indictment charges an offense which was a crime at common law. In Com. v. Beamish, 31 P. F. Sm. 389, it was decided that the fraudulent alteration of a book known as a tax duplicate was forgery at common law. It is plain, under this authority, the plaintiff in error could have been indicted for forgery. Affirmed. Opinion by PAXSON, J.-Com. v. Luberg.

INSOLVENCY - BANKS - DEPOSITORS - DISCOUNT OF NOTES INSOLVENCY OF DEPOSITORS WHEN BANKS MAY CHARGE AN INSOLVENT DEPOSITOR'S ACCOUNT WITH THE AMOUNT OF AN UNMATURED NOTE DUE TO IT-RIGHTS AS AGAINST ASSIGNEES OF DEPOSIT BY CHECK OR OTHERWISE.-1. In case of the insolvency of the borrower before actual payment of the money by the lender, an equitable right, analogous to the doctrine of stoppage in transitu before the actual delivery of goods, may be exercised by the lender. 2. Although the relation between a bank and its depositor is that of debtor and creditor, and the bank has no lien upon the fund on deposit for the depositors's future liability to it, and although a depositor may assign his deposit for value by check or otherwise, notwithstanding the fact that the bank bolds liabilities of the depositor unmatured at the time of the notice of the assignment, nevertheless, when a bank has extended its credit to a depositor by discounting his note, but learns of his insolvency before payment, or notice of any checks drawn upon the fund, the bank may withdraw the credit upon tendering him the consideration-i. e., the notes and the amount of the discount. 3. On March 28, 1877, a bank agreed by letter with its depositor, A, to discount a new note in renewal of one already discounted and maturing on the following April 2, and received the new note and collateral, with the amount of the discount, before that date. On April 2, after business hours, the bank returned the original note. On April 3, the bank learned that A had that day confessed insolvency, and the bank thereupon charged A's account with the amount of the renewal note, tendering back the note and collaterals, and the amount of the discount. In a suit brought before the date of the maturity of the renewal note by A for the use of B and C, holders of checks drawn by A on April 2, but not presented for payment until after notice of the insolvency had been received by the bank, and also assignees by assignment under seal of the whole fund on deposit: Held, that the plaintiffs could not recover. Affirmed. Opinion by TRUNKEY, J. MERCUR and STERRETT, JJ., dissenting.-Dougherty v. Central Nat. Bk. 9 W. N. 1.

QUERIES AND ANSWERS.

[**The attention of subscribers is directed to this depart ment, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested.

The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

32. A and B own a tract of land as tenants in common. B without the knowledge of A, builds a house on a part of the land and occupies it for several years, after which A sues for partition. Has B a right to have set-off to him, as part of his share, the land on which his house stands, at a valuation exclusive of his improvements? If not, is he entitled on the partition to the value of his improvements to be taken in land? G.

[Our correspondent will find his query No. 38 (10 Cent. L. J. 437) answered in a subsequent number of that volSee 10 Cent. L. J. 498.-ED. CENT. L. J.]

ume.

33. A entered the S 1-2 of sec. 1. By mistake government issued patent to A for N 1-2 of sec. 1. Subsequently B entered N 1-2 of sec. 1, and received patent therefor. What are the respective rights of A and B? Both patents are of record in order in which they were issued. Greenfield, Iowa. N. T.

34. A, induced by the statements of B that his wife C owned some wild land in Missouri, the legal title of which was in himself; that he meant to make her a deed to it, and that she then could make a good title,.and afterwards finding B's warranty deed, (setting forth a full consideration) in C's possession, then and there purchased said land of her by warranty deed, (as a feme sole) for its full value, being also farther induced by the false representations of C that she had obtained a divorce from her husband. Both of said deeds were acknowledged before a justice of the peace in the State of Illinois. Subsequently B represented to D that the conveyances of himself to C, and C to A, "were all right" and that he would never interfere, which was communicated to A, who afterwards sold said land, (the two said deeds having been placed on record) by warranty to E, who put his deed on record and took possession of the land. Afterwards E sold it to F, who is in possession. Can the heirs of B and C, in the lifetime of the latter, and after the death of the former, recover the land in ejectment? Carthage, Mo. J. P.

35. In a suit for foreclosure, in which service was had by publication, a personal judgment was rendered against the defendants for the amount of the note and mortgage; the mortgage foreclosed, the land sold, sale confirmed, sheriff's deed made and purchaser put in possession of the premises. Afterwards defendants appeared and moved to set aside the judgment because they were and had been residents of the State all of said time, and had not been served with a summons. Said motion sustained by the court, judgment and decree set aside, and defendants allowed to answer. This case is still pending. The purchaser then brought action to recover the purchase-money from said judgment-creditor, and same court held that the action could not be maintained for the reason that the purchaser acquired a good and valid title at said sale under judgment. Query-What judgment can be rendered in the original P.

case?

Winfield, Kas.

36. On Feb. 20, 1880, A leased farm lands of B, to be planted in corn; rent to be paid in one-third of the crop. On March 20, 1880, before the corn was planted, the following agreement was written on the lease: "It is hereby agreed that the term of this lease shall expire on the 1st day of July, 1880, at the option of the said B," signed by A and B. A, with the knowledge of B, planted the land in corn. On the 21st day of June, 1880, before said corn was matured, B informed A by letter that he had elected to terminate the lease on July 1, 1880. A refused to give up possession of the premises leased, and on July 14, 1880, B sued him in action of forcible detainer, for possession of said land. What kind of a tenancy did said lease, and subsequent agreement thereon written, create? What are the rights of the parties under

the laws of Kansas, which give a tenant at will right to thirty days notice to quit? Abilene, Kas.

P.

CURRENT TOPICS.

ANSWERS.

15. [11 Cent. L. J. 78.] The statutes of various States changing estates tail into estates in fee simple absolute are construed to allow the fee tail and a succeeding remainder to arise, and then destroy the remainder by the statutory conversion of the estate tail to the fee simple absolute, with much the same effect as if tenant in tail, with remainder over, had suffered a recovery, and thereby cut off the remainder. Lion v. Burtiss, 20 Johns. 483; Wilkes v. Lion, 2 Cow. 333, 392, 393. A. Y. S. Madison, Wis.

27. [11 Cent. L. J. 158.] "The filing of a creditor's bill creates a lien in equity upon the lands described in the bill, entitling the plaintiff to priority over other creditors." 1 Fed. Rep. 571; 2 Sanf. Ch, 494; 24 How. 352; Miller v. Sherry, 2 Wall. 249. A conveyance fraudulent as to creditors is binding on the grantor, so that there is no estate, legal or equitable, remaining in him on which a judgment lien can attach. The lien only attaches on the avoiding of the deed by the creditor, so that he who avoids the deed has the prior lien. Rappleye v. Bank, Supreme Court of Illinois, Feb. 4, 1880, 9 Rep. 469. Helena, Ark.

J. T.

27. [11 Cent. L. J 158.] "Vigilantibus jura subveniunt." Priority is obtained by the creditor who first files his bill to attack a fraudulent conveyance, where judg ments are rendered after such conveyance. 1 Paige, 637; Story's Eq. Pl. 138; Ballentine v. Beall, 3 Scam. 203; Lyon v. Robbins, 46 Ill. 276; Miller v. Sherry, 2 Wall. 238. Quincy, Ill. SAM. WOODS.

31. [11 Cent. L. J. 178.] If the party suing the attachment out of the justice's court is not party or privy to the replevin suit, he can in no way be affected by it, or any judgment therein. Res inter alios acta. See 1 Starkie on Ev. 52; 3 Id. 1300; 4 Man. & G. 182; 1 Metc. (Mass.) 55; Broom's Legal Maxims, p. 953, et seq. aud notes and authorities. M. THOMPSON.

St. Louis, Mo.

22. [11 Cent. L, J. 138.] The answers given to this query in 11 Cent. L. J. 158, I think are opposed to the weight of authorities on the question, although probably governing the construction in Indiana. For a discussion of the opposite view to the one cited, see 44 Iowa, 309; 58 I11. 124; 24 Wis. 346; 68 Ill. 197; 45 Iowa, 447; Wait's Action and Defenses, Vol. 4, p. 535, and cases cited. Cedar Rapids, Iowa. F. A. SIMMONS.

28. [11 Cent. L. J. 158.] A's share is $2,763.16; C's share is $736.84. A's share is 3-5 or 15-25 of whole estate; C's share is 2-5 of 2-5, or 4-25 of the whole estate. B's share being more than exhausted by his debt, the remaining $3,500 is to be divided between A and C in the proportion of 15-25 to 4-25; that is, 15 to 4, or every time A gets $15, C gets $4, or of every $19 A gets $15, C $4. Therefore A will get $15 and C $4 as often as 19 is contained in 3,500; 3,500 divided by 19 equals 184.21; whence 4 times 184.21 equals $736.64, C's share, and 15 times 184.21 equals $2,763.16, A's share. SAM. WOODS.

Quincy, Ill.

[W. O. Henderson, Columbus, Ohio, and "L," Groesbeck, Texas, send similar answers to this query.-ED. CENT. L. J.]

In the current adjudications which have come under our notice during the past week, definitions have played a very important part. First, the Supreme Court of Alabama, in Walker v. State, was called upon to apply the common requisite of the crime of burglary, viz.: "breaking and entering," to the facts of a rather novel case. The evidence showed that the prisoner was caught under a corn crib when he confessed that he had some weeks before taken a large auger, and going into the crib, had bored a hole through the floor, from which the corn, being shelled, ran into a sack which he held under it, after which he closed the hole with a cob. He was convicted of burglary, and on appeal to the Supreme Court, the conviction was sustained. Said Brickell, C. J.: "The lifting the latch of a door, the picking of a lock or opening with a key, the removal of a pane of glass, and indeed the displacement or unloosing any fastening the owner has provided as a security to the house, is a breaking, an actual breaking, within the meaning of the term, as employed in the definition of burglary at common law, and as it is employed in the statutes. In Hughes' Case, 1 Leach C. C. 178, the prisoner had bored a hole with a centre-bit through the panel of the house door, near to one of the bolts by which it was fastened, and some pieces of the broken panel were found within the threshold of the door; but it did not appear that any instrument except the point of the centre-bit, or that any part of the prisoner's body had been within the house, or that the aperture made was large enough to admit a man's hand. The court were of the opinion that there was a sufficient breaking, but not such an entry as would constitute the offense. The boring of the hole through the floor of the crib was a sufficient breaking, but with it there must have been an entry. Proof of a breaking, though it may be with an intent to steal or the intent to commit a felony, is proof of one only of the facts making up the offense, and is as insufficient as proof of an entry through an open door, without breaking. If the hand or any part of the body is intruded within the house, the entry is complete. The entry may also be completed by the intrusion of a tool or instrument within the house, though no part of the body be introduced. When no part of the body is introduced, when the only entry is of a tool or instrument introduced by the force and agency of the party accused, the inquiry is, whether the tool or instrument was employed solely for the purpose of breaking, and thereby effecting an entry; or whether it was employed not only to break and enter, but also to aid in the consummation of the criminal intent, and its capacity to aid in such consummation. Until there is a breaking and entry, the offense is not consummated. The offense rests largely in intention, and though there may be sufficient evidence of an attempt to commit it, which of itself is a crime, the attempt may be abandoned; of it there may be repentance before the consummation of the offense intended. The breaking may be at one time and the entry at another. The breaking may be complete, and yet an entry never effected. From whatever cause an entry is not effected, burglary has not been committed. When one instrument is employed to break, and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in some other way or manner, to consummate the criminal intent, the intrusion of the instrument is not of itself an entry. But when, as in this case, the instrument is employed not only to break, but to effect the only entry contemplated and necessary to the consummation of the